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Fahrenbrink v. Moore

Supreme Court of Arizona

October 18, 1937

H. W. FAHRENBRINK and GERTRUDE L. FAHRENBRINK, Appellants,
v.
GRANVILLE S. MOORE, Appellee

APPEAL from a judgment of the Superior Court of the County of Yuma. E. W. McFarland, Judge. Judgmet affirmed.

Mr. Fred L. Ingraham and Mr. Mercer Hemperley, for Appellants.

Mr. Ray C. Bennett and Mr. Charles E. Beardsley, for Appellee.

OPINION

[50 Ariz. 394] ROSS, J.

H. W. Fahrenbrink and Gertrude L. Fahrenbrink, husband and wife, owners, gave a lease and option on two mining claims, Quartette No. 1 and Quartette No. 2, located in Yuma county, Arizona, to E. A. Ely, and this action by them is against Ely and Granville S. Moore, to whom Ely assigned the lease and option, and John Doe one, who, three and four, described as a fictitious corporation.

The purpose of the action is to secure a cancellation and forfeiture of the lease and option for numerous breaches of the terms thereof, alleged to have been committed by Ely and his assignee Moore. The defendant Moore, as the assignee of the lease and option, filed an answer, denying the the contract had been breached as alleged, or at all, and setting up certain affirmative defenses. The action proceeded against Moore alone. The record and judgment are silent as to the other named defendants. It does not appear that any of them was served with process or filed any appearance.

The case was tried to the court without a jury, and the court found the issues in favor of defendant Moore and against the plaintiffs and entered judgment accordingly. The plaintiffs have appealed. They attempted [50 Ariz. 395] to make the transcript of the testimony a part of the record but, upon motion, it was stricken so we do not have the evidence. Assignments of error relating to admission and sufficiency of evidence cannot be considered where the reporter's transcript is stricken or where the court has not the evidence before

Page 685

it. Michener v. Standard Acc. Ins. Co., 46 Ariz. 66, 47 P.2d 438; Koester v. Golden Turkey Min. Co. et al., ante, p. 344, 71 P.2d 1086, decided October 11, 1937.

This leaves only four assignments to be considered. Three of these are directed at the court's rulings striking certain allegations from the complaint on defendant's motion, and the fourth is from an order overruling plaintiffs' demurrer to the answer and refusing to strike certain portions of the answer.

One of the provisions of the lease and option contract reads:

"... all work and mining operations performed and carried on by buyer shall be in miner-like fashion and with a view towards developing the property into a workable mine, properly timbering such workings...."

The breach of this provision is alleged in the following words:

"... said defendants and all of them have violated the terms and conditions thereof and have breached and defaulted same, and especially that they have failed to work said mine in a miner-like fashion with a view towards developing the property into a workable mine and such work as they have done in said mine has been done with no intention and had no effect to develop said property ...


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